Robert S. Harrison Chairman, President & Chief Executive Officer
Exhibit 10.1
Xxxxxx X. Xxxxxxxx
Chairman, President & Chief Executive Officer
June 28, 2023
Xx. Xxxxx X. Xxxxxx
[Address]
[Address]
Dear Xxxxx:
This letter (this “Letter Agreement”) memorializes our recent discussions regarding your employment transition with First Hawaiian, Inc. (the “Company”) and First Hawaiian Bank (the “Bank” and, together with the Company, the “Employer”). All capitalized terms that are not defined in this Letter Agreement are used with the meanings assigned in the Executive Severance Plan of First Hawaiian, Inc. (the “Severance Plan”).
1. | Separation |
2. | Protective Covenants |
3. | Miscellaneous |
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[Signature Page Follows]
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If this Letter Agreement correctly describes our understanding, please execute and deliver a counterpart of this signature page, which shall become a binding agreement on our receipt.
Sincerely,
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| By: | /s/Xxxxxx X. Xxxxxxxx | |
| | Name: | Xxxxxx X. Xxxxxxxx |
| | Title: | Chairman, President and |
| | | Chief Executive Officer |
| First Hawaiian Bank | ||
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| By: | /s/Xxxxxx X. Xxxxxxxx | |
| | Name: | Xxxxxx X. Xxxxxxxx |
| | Title: | Chairman, President and |
| | | Chief Executive Officer |
Accepted and Agreed
I hereby agree with and accept the terms
and conditions of this Letter Agreement:
/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Date: June 28, 2023
[Signature Page to Letter Agreement]
Exhibit A
Form of Release
THIS RELEASE (this “Release”) is entered into between Xxxxx X. Xxxxxx (“Executive”), First Hawaiian, Inc. (the “Company”) and First Hawaiian Bank (the “Bank”, together with the Company, the “Employer”) for the benefit of the Employer and its affiliates. The entering into and non-revocation of this Release is a condition to Executive’s right to receive certain payments and benefits under Section 1 of the Letter Agreement entered into by and between Executive and the Employer, dated as of June 28, 2023 (the “Letter Agreement”). Capitalized terms used and not defined herein shall have the meaning provided in the Letter Agreement.
Accordingly, Executive and the Employer agree as follows.
1.General Release and Waiver of Claims.
(a)In consideration for the payments and other benefits provided to Executive by the Letter Agreement, to which Executive is not otherwise entitled, and the sufficiency of which Executive acknowledges, Executive, for himself, his agents, heirs, successors, assigns, executors and/or administrators (collectively, “Releasers”), finally and forever releases the Company and the Bank and the subsidiaries and affiliated companies of each, as well as the successors, predecessors, assigns, agents, directors, officers, employees, attorneys and representatives of all such entities, past or present (collectively, “Releasees”), from any and all causes of action, actions, judgments, liens, debts, contracts, indebtedness, damages, losses, claims, liabilities, rights, interests and demands of whatsoever kind or character, known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, whether or not previously brought before any state or federal court or before any state or federal agency or other governmental entity, which Executive has or may have against any released person or entity, by reason of any and all acts, omissions, events or facts occurring or existing prior to the date on which Executive signs this Release, including, without limitation, all claims concerning the employment of Executive or the termination of Executive’s employment.
(b)This release by Executive includes, but is not limited to, claims for breach of contract, express or implied; promissory estoppel claims; constructive discharge claims; tort claims, including, but not limited to, intentional or negligent infliction of emotional distress, invasion of privacy, negligence, negligent investigation, negligent hiring or retention, assault and battery, defamation, intentional or negligent misrepresentation and fraud; claims of employment discrimination, harassment or retaliation; unlawful termination; wrongful termination in violation of public policy; claims for wages, hours, benefits, and compensation; and any and all claims for attorney’s fees and costs. This release includes claims arising under any federal, state or other governmental statute, regulation or ordinance or common law, such as, for example and without limitation, Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, race, color, national origin and religion; the Civil Rights Act of 1866; Civil Rights Act of 1991; the Age Discrimination in Employment Act (“ADEA”) which prohibits discrimination on the basis of age 40 and older; Older Workers’ Benefit Protection Act; the Americans with Disabilities Act, which prohibits discrimination on the basis of disability; the Genetic Information Non-Discrimination Act, which prohibits discrimination on the basis of genetic information; Fair Labor Standards Act; Employee Retirement and Income Security Act; Family Medical Leave Act; the Worker Adjustment and Retraining Notification Act; 42 U.S.C. § 1981; Hawaii Constitution; Hawaii Wage and Hour Law (Chapter 387, Hawaii Revised Statutes (“HRS”)); Hawaii Employment Practices Act (Chapter 378, HRS) which, among other things, prohibits discrimination because of race, sex, sexual orientation, age,
religion, color, ancestry, disability, marital status, arrest and court record, credit history or credit report, gender identity and expression, domestic or sexual violence victim status, or reproductive health decision; Dislocated Workers Act (Chapter 394B, HRS); Payment of Wages and Other Compensation statute (Chapter 388, HRS); the Hawaii Civil Rights Commission Act (Chapter 368, HRS); and the Whistleblowers’ Protection Act (Chapter 378, Part V, HRS).
(c)The foregoing release means that Executive cannot sue Employer (or companies or people related to, employed by or who acted on behalf of Employer as set forth above) in court or bring any other legal proceedings for anything that happened during Executive’s employment, for anything having to do with the termination of Executive’s employment, or for any claim which Executive may have against Employer as of the date on which Executive signs this Release, except as permitted by law or regulation. However, in the event such a proceeding is brought, Executive agrees that the consideration provided to Executive in this Release and in the Letter Agreement shall be the sole relief provided for the claims that are released herein, and Executive will not be entitled to recover and Executive agrees to waive any monetary benefits or other recovery in connection with any such proceedings regardless of who has brought such claims.
2.Proceedings; Whistleblower Rights. To the maximum extent permitted by law, Executive agrees that he has not filed, nor will he ever file, a lawsuit asserting any claims that are released by this Release, or to accept any benefit from any lawsuit that might be filed by another person or government entity based in whole or in part on any event, act, or omission that is the subject of this Release. Notwithstanding the foregoing, nothing in this Release shall impair Executive’s rights under the whistleblower provisions of any applicable federal law or regulation or, for the avoidance of doubt, limit Executive’s right to receive an award for information provided to any government authority under such law or regulation.
3.Exclusions. Excluded from this Release are: (i) any rights or claims that the law does not allow to be released and/or waived by private agreement; (ii) Executive’s rights to receive the benefits specified in Section 1 of the Letter Agreement, subject to the conditions and requirements set forth therein; (iii) Executive’s rights to any equity or equity-based awards of the Employer, or payments in respect thereof, (iv) any rights Executive may have to receive vested amounts under any of the Employer’s benefit plans and/or retirement or pension plans or programs; (v) Executive’s rights in and to any equity or ownership interest that Executive continues to hold following his termination of employment; (vi) Executive’s rights to medical benefit continuation coverage pursuant to federal law (COBRA); (vii) any rights or claims that are based on events occurring after the date on which Executive signs this Release, including for breach of the Letter Agreement; (viii) Executive’s rights to enforce or challenge the validity of this Release; or (ix) any claims to indemnification or insurance coverage, including but not limited to “D&O coverage”, that Executive may have with respect to any claims made or threatened against Executive in Executive’s capacity as a director, officer or employee of the Employer or the Releasees. Nothing contained in this Release shall release Executive from his obligations, including any obligations to abide by the covenants set forth in Section 2 of the Letter Agreement and any other restrictive covenants applicable to Executive that continue or are to be performed following termination of employment.
4.EEOC/HCRC Matters. The parties agree that this Release shall not affect the rights and responsibilities of the U.S. Equal Employment Opportunity Commission (the “EEOC”) and/or the Hawaii Civil Rights Commission (“HCRC”) to enforce laws under their respective jurisdictions. In addition, the parties agree that this Release shall not be used to justify interfering with
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Executive’s protected right to file a charge or participate in an investigation or proceeding conducted by the EEOC or HCRC. The parties further agree that Executive knowingly and voluntarily waives all rights or claims (that arose prior to Executive’s execution of this Release) the Releasers may have against the Releasees, or any of them, to receive any benefit or remedial relief (including, but not limited to, reinstatement, back pay, front pay, damages, attorneys’ fees, experts’ fees) as a consequence of any investigation or proceeding conducted by the EEOC or HCRC.
5.Acknowledgements. Executive acknowledges that the Employer has specifically advised him of the right to seek the advice of an attorney concerning the terms and conditions of this Release. Executive further acknowledges that he has been furnished with a copy of this Release, and he has been afforded forty-five (45) calendar days in which to consider the terms and conditions set forth above prior to this Release. By executing this Release, Executive affirmatively states that he has had sufficient and reasonable time to review this Release and to consult with an attorney concerning his legal rights prior to the final execution of this Release. Executive further agrees that he has carefully read this Release and fully understands its terms. Executive understands that this Release shall become null and void if he revokes this Release within seven (7) days after signing this Release. Executive may revoke this Release at any time during such seven-day period by delivering (or causing to be delivered) written notice of his revocation of this Release no later than 5:00 p.m. Eastern time on the seventh (7th) full day following the date of execution of this Release to Xxxx Xxxxxxxxx, Chief Human Resources Officer, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, XX 00000. Executive agrees and acknowledges that a letter of revocation that is not received by such date and time will be invalid and will not revoke this Release. Executive agrees that any modifications, material or otherwise, made to this Release, do not restart or affect in any manner the original up to forty-five (45) calendar day consideration period.
6.Additional Representations. Executive represents and warrants that, as of the date on which Executive signs this Release, (i) Executive has been paid all wages (including base compensation, incentive pay, bonuses, and any other remuneration) to which Executive was entitled by virtue of Executive’s employment with Employer and is unaware of any facts or circumstances indicating that Executive may have an outstanding claim for unpaid wages, and (ii) Executive has not suffered any injury or illness arising out of or in the course and scope of Executive’s employment with Employer for which Executive has not already filed a claim.
7.Governing Law. This Release shall be governed by and construed in accordance with the laws of the state of Hawaii, without giving effect to any choice of law or conflicting provision or rule (whether of the state of Hawaii or any other jurisdiction) that would cause the laws of any jurisdiction other than the state of Hawaii to be applied. In furtherance of the foregoing, the internal law of the state of Hawaii shall control the interpretation and construction of this Release, even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily apply.
8.Severability. The provisions of this Release are severable, and if any part or portion of it is found to be unenforceable, all other parts and provisions shall remain fully valid and enforceable.
9.Captions; Section Headings. Captions and section headings used herein are for convenience only and are not a part of this Release and shall not be used in construing it.
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10.Counterparts; Facsimile Signatures. This Release may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original instrument without the production of any other counterpart. Any signature on this Release, delivered by either party by photographic, facsimile or PDF shall be deemed to be an original signature thereto.
11.Effectiveness. This Release shall become effective and enforceable on the eighth day following its execution by Executive, provided that he does not exercise his right of revocation as described above. If Executive fails to sign and deliver this Release or revokes his signature, this Release shall be without force or effect, and Executive shall not be entitled to the Severance Benefit of Section 1 of the Letter Agreement.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS RELEASE AND THAT THEY FULLY KNOW, UNDERSTAND AND APPRECIATE ITS CONTENTS, AND THAT EACH OF THEM HEREBY EXECUTES THE SAME AND MAKES THIS RELEASE AND THE RELEASE PROVIDED FOR HEREIN VOLUNTARILY AND OF THEIR OWN FREE WILL.
BECAUSE THIS RELEASE INCLUDES A RELEASE OF CLAIMS UNDER XXXX, EXECUTIVE IS BEING PROVIDED WITH THE INFORMATION CONTAINED IN SCHEDULE 1 HERETO IN ACCORDANCE WITH THE OLDER WORKERS BENEFIT PROTECTION ACT (OWBPA).
[Signature Page Follows]
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The parties knowingly and voluntarily sign this Release as of the date(s) set forth below:
Executive | |||||||
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By: | | | | | |||
Name: | Xxxxxx X. Xxxxxxxx | Xxxxx X. Xxxxxx | |||||
| Title: | Chairman, President and | | ||||
| | Chief Executive Officer | | ||||
| Date: | Date: | | |
First Hawaiian Bank
By:____________________________
Name:Xxxxxx X. Xxxxxxxx
Title:Chairman, President and
Chief Executive Officer
Date:
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Schedule 1